Take a seat.
Now tell me what you were doing in 1963. In detail, please.
Is it possible that you committed an offence in 1963, a serious offence?
Tell me, sir, did you rape your wife, in 1963?
There is no statute of limitations applying to rape in Australia and that is probably a good thing. It is easy to imagine an instance where a rape occurs, is reported, investigated thoroughly (and fairly) but the assailant is unidentified. Years later, even many years later, DNA evidence emerges that identifies the culprit. Why should the criminal get away with it for no other reason than the elapse of time?
My imagination would have far greater difficulty coming up with a scenario in which a man is charged with rape, committed it is said in 1963, where the complaint is made 46 years later, and the complainant was the defendant’s wife at the time. They separated in 1969, six years after the alleged rape, and divorced in 1971. The defendant is now 81 years old, the case hinges, not on identity but on consent. How on earth can an 81 year old be fairly tried under these circumstances?
Notes.
I have relied on news articles concerning the recent High Court deliberations regarding rape in marriage, as it was understood in 1963, published by <SBS> and the <Australian>.
The SA Criminal Law Consolidation Act 1935, in its current, amended form is easily found on the web. It would appear that the statute of limitations that applied after 1935 was abolished by a 1985 amendment. Could it be that a complaint in 1984 would have been out of time but a complaint in 2009 is not?
The Australian Government publishes a fact sheet on sexual assault, where we find this little gem “Gender neutral legal terminology is predominantly used to describe the victims (complainant) and perpetrators (defendant) of sexual assault.” So, to help us with the big words they make it clear that the defendant is the perpetrator – can anyone get a fair trial in Australia?
According to the fact sheet one of the reforms of the last 30 years has been the recognition that rape in marriage constitutes a criminal offence implying that in 1963 it was not.
bobmcgee 